_The Queen v Ogawa_

District Court of Queensland|2008-12-22

Office of the Commonwealth Director of Public Prosecutions

[1] The accused was charged with four Commonwealth offences made pursuant to the Criminal Code. She has been arraigned and has entered pleas of not guilty. She has at all material times not been represented by lawyers. That circumstance has been well documented in other material and in evidence and has been referred to in judgments of this Court and of the Supreme Court.

[3] The accused is an employee of and an associate lecturer at Southern Cross University, but has apparently not engaged in any teaching or allied duties. She has prepared for submission a doctoral thesis (subject to correction and marking) and hence is on the threshold of the award of a PhD. She is the author of a book on copyright law which is ready for publication by an international legal publisher, as I understand things, and the book has a foreword by a former Chief Justice of Australia, Sir Anthony Mason.

[4] In her litigation with the University of Melbourne and the Commonwealth Authorities she largely (if not entirely) represented herself through the Federal Courts. The current charges arise out of that factual matrix.

[5] There has been a lengthy history of pre-trial hearings. In October 2008 the accused's bail was revoked by me and she was remanded in custody for her own protection. There followed a consultation with Dr Kingswell, a consultant psychiatrist retained by the Corrective Services Commission, who prepared a report dated 20 October 2008 ("the first report") for the Court.

[6] As a consequence of the first report and the doctor's evidence given at a bail application heard on 10 November 2008 (where she was represented on that application by lawyers) the accused was re-admitted to bail on her own undertaking, subject to specific terms relating to treatment for a diagnosed psychiatric condition.

[7] The treatment to which I have referred is and will continue to be supervised by psychiatrist Dr Calvird. The importance of separating the reporting and treatment functions of the psychiatrists was emphasised in evidence at the bail application hearing (T 1.2, LL21-25: 11.11.08).

[8] Dr Kingswell was requested to provide a further report and this was completed ("the second report") on 4 December 2008. At a further hearing conducted on 10 December 2008, Dr Kingswell appeared as a witness, at the request of the accused. He was examined at length by the accused, who appeared again without legal representation. The examination concluded some time after my direction that the accused limit the examination. It had continued for some two to three hours. (See T 12.57 LL 38-60; T 12.58 LL 4-10; T 12.60 LL 20 -30; T 12.60 L59 - T 12.61 L15; and T 12.62 L45.)

[9] The prosecution cross-examination was very brief and I allowed some further re-examination. The parties were directed to provide written submissions if they wished, for my consideration prior to a further directions hearing which I fixed for 19 December 2008.

[10] The accused as a long and well documented history of non-cooperation with and resistance to the judicial process in this case. Indeed, Dr Kingswell referred to this in his second report and in testimony.

[11] The first report was primarily focussed on the accused's risk of self-harm. That issue was resolved satisfactorily in my view in Dr Kingswell's evidence on the bail application. (T 9.24 LL31 - 40).

[12] The second report was requested to address the issues that remained extant after resolution of the issue of risk of self harm, including capacity to prepare for and appear self - represented on the trial. It was apparent that the first report was prepared without all of the relevant documentation having been provided to Dr. Kingswell..

[13] At the conclusion of the evidence on 10 December 2008, I gave directions about written submissions. The accused did not object to the directions and appeared to accept the time and date upon which I required them to be filed and served. I also have made reference to the transcript, in the following terms:

"... Miss Ogawa, this is really information for both of you. I understand the transcript will be available tomorrow, but it may not be available til later in the day, and if you wish to make a submission to me you can, and I'm not directing that you do, but I will give directions about when they are to be provided to me in writing."

Miss Ogawa did not indicate any difficulty that she perceived about the prospect of collecting the transcript from the Registry when it was available.

[14] The accused's submission was not received at or before 4 p.m. on Monday, 15 December 2008 in accordance with the direction. However the Registrar, it seems, received a document from the accused overnight and it was transmitted to me on the morning of Tuesday, 16 December 2008. There is no issue about the receipt of the document, although it was not regularly filed and may not have been served on the Commonwealth Director of Public Prosecutions. However, I asked the Registry to forward a copy to them.

[15] The document is not a submission about the evidence. Its terms are as follows:

"1. At a mention on 10 December 2008. Durward DCJ made directions that on or before 4 p.m., 15 December 2008, I file my submissions, if any, with the Court in relation to the directions to be made by the Court as a result of Dr William Kingswell's evidence.

2. I have decided to make no submission at this stage because:

I was not allowed to complete my cross-examination of Dr Kingswell, in particular, I could not ask the most important questions that I would be able to ask only after all my other questions were answered, resulting in me being placed in the impossible position to make any sensible submission;

I have not been able to obtain the relevant transcripts of the proceedings which made me impossible to be certain about the details of the proceedings; and

In any event, I intend to request the Court to list the matter for another mention after I am seen by Dr Michele Calvird of Toowong Private Hospital on 18 December 2008 and obtain her psychiatric advice."

[16] I reject the assertions made above in 2.1) and 2.2). The accused was involved in an extensive filibuster. Questions were directed to irrelevant matters or were unnecessarily repetitive. The accused was told to focus on the significant issues, which included for example a potential defence to the charges, a matter that I previously raised and that I had requested Dr Kingswell to address. That suggestion was ignored.

[17] In my view the accused was and continues to be engaged in a wilful course of frustrating the legal system. She is more intent on avoiding the continuation of the proceedings than in dealing with the charges. Dr Kingswell said the following in his second report:

"The principle risk Miss Ogawa poses to herself is repetitive querulous behaviour in the Federal Court that will severely limit the Court's capacity to continue its job and frustrate the attempts to resolve this matter."

"In my view it is for Miss Ogawa a matter of choice as to whether she pursues this matter in a committed way, motivated by a desire to resolve the issue or whether she chooses to frustrate the Court."

Dr. Kingswell's reference to the "Federal Court" is a slip or error. He was clearly referring to this Court.

[18] The accused has been supported in Court on almost every day by one or more persons who appear to be physically active and of sufficient intelligence to be able to assist her to obtain the transcript from the Registry. The accused knew that the transcript would be available for collection (see my reference to the transcript above, which is at T 12.69). In my view she has neglected or, more probably, wilfully refused to collect the transcript and make use of it.

[19] Finally, the accused has in 2.3) above, in effect, sought an adjournment for another mention date after her first direct consultation for treatment with Dr Calvird is concluded on 18 December 2008. If that is the case, I refuse the application in the terms in which it is sought. Dr Calvird is the treating psychiatrist and has, I understand, already authorised a regime of treatment by medication as a preliminary step, through a general practitioner. The further directions in this matter, which are the subject of the Orders made in this Judgment, provide for the determination of any further pre-trial applications.

[20] In my view the accused has exercised a choice of not making a submission and the document she has provided to the Court is simply a further example of her continued wilful conduct in frustrating the judicial process.

[21] The Commonwealth Director of Public Prosecutions filed a submission in accordance with the direction and I have read that document.

[22] In the second report, Dr Kingswell opines a new or changed diagnosis. He explained this in his second report and in testimony. That new diagnosis is of some significance in relation to the other issues which the doctor was asked to report about.

[23] In his first report, Dr Kingswell in his conclusions said the following about the diagnosis that he could make at that time. The initial diagnosis was made in the absence of some important documentation, which had been intended to be provided to him but for unaccountable reasons was not. It was also made in the absence of any familial consultations, because the accused's family is in Japan. Dr Kingswell said the following:

"I think the most likely diagnosis for Miss Ogawa is a major depressive disorder of a severe degree. There have been concerns raised in the medical records that Miss Ogawa has a personality disorder. There have also been some concerns raised that she suffers from post-traumatic stress disorder and there was consideration that she might suffer from a psychotic disorder such as schizophrenia.

Personality disorder is a term used to describe personality characteristics present in a person's late adolescence and continuing into adulthood that cause significant difficulties for them or for others.

Personality disorder is a departure from the norm in a quantitative sense rather than a qualitative one. Personality disorder describes who a person is rather than an illness process. It is a diagnosis that should be used with great caution in the setting of another mental health disorder, particularly a severe one such as major depressive disorder. The capacity of a practitioner to confidently diagnose personality disorder is further limited in this case by the lack of any collateral history from family or friends. The evidence to hand is that Miss Ogawa's educational achievements are very impressive. There is no evidence to hand, that prior to the difficulties arising with the Melbourne University, that her interpersonal relationships were particularly unusual and there is no evidence to hand that Miss Ogawa suffered any instability of mood or sense of self that might characterise personality disorder. There is no evidence of reckless behaviour such as self-harm or drug use.

Personality disorder is not particularly amenable to treatment. There is some evidence that the functioning of people with personality disorder can be improved by psychological means. It is often possible to limit or stop the drug use or deliberate self-harm. Sufferers can be assisted in maintaining stable intimate relationships and occupational functioning can often be improved. However there is very little evidence that the personality difficulties themselves are amenable to treatment.

The presence or absence of a personality disorder should not change the management of a severe mood disorder such as a major depressive disorder."

This was developed further in the doctor's testimony on 11 December 2008 (T 9.17 LL17-25; T 9.24 LL2-7).

[24] Dr Kingswell then went on to discuss treatment. He said the following:

"Miss Ogawa is a 41 year old woman with a major depressive disorder of a severe degree that has responded poorly to the limited treatment efforts that have been made to this point. In my view Miss Ogawa should be referred to a specialist psychiatrist for ongoing management. I have taken the liberty of speaking to a colleague who would be happy to provide Miss Ogawa's ongoing treatment if she were to request a referral."

[25] In the second report, Dr Kingswell addresses "the issue of diagnosis" quite explicitly, in the following terms:

"There is a consistent picture throughout all of the records to hand. Miss Ogawa is prone to anxiety and depression. Miss Ogawa is given to inappropriate flights of anger with a destruction of property and abuse.

In my view the history to hand is most consistent with more than one diagnosis. The most prominent is borderline personality disorder.

I maintain the comments that I made in Court about the difficulties in being certain about the diagnosis in the absence of a robust collateral history, particularly from family and friends that would know Miss Ogawa well and have known her throughout her late adolescence and young adulthood. However, there is an established pattern of behaviour continuing over a number of years.

Miss Ogawa suffers from recurrent episodes of anxiety and depression. These apparently worsen with stress and are probably best viewed as 'recurrent adjustment disorder with depressed and anxious mood' of mild to moderate degree.

Miss Ogawa is quite disturbed and she is prone to anxiety and depression. Her disturbance in large measure is due to her personality disorder rather than a mental illness. Nonetheless, she needs ongoing psychiatric supervision. She needs continued surveillance for worsening of her anxiety and depression. Treatment for anxiety and depression is appropriate. It is likely that psychological management would assist Miss Ogawa control some of her care enlisting behaviour and perhaps form more stable relationships. Treatment could be provided as an outpatient.

I am not of the view that Miss Ogawa suffers from any illness that would warrant her hospitalisation, particularly not her involuntary hospitalisation."

[26] The issue of diagnosis was developed further in the course of the examination of the doctor by the accused. This included her pursuing the issue of the change of diagnosis from the first report to the second report. It is perhaps best illustrated by a question asked by me to crystallise the issue for the doctor. This was expressed in the following terms:

"HIS HONOUR: Dr Kingswell, you understand the issue that Miss Ogawa has. What she makes of your opinion is a matter for me in argument, not necessarily for you, that she is asking the question that I suppose essentially comes down to this: that the change of diagnosis is because you have detected an inconsistency which you have expressed in a number of ways between what you were told by her in the interview in the gaol and what you have referred to as the longitudinal history that came from other sources, including the documents that you have before you. Is it possible to say - or to identify individual documents or is it the impact of the whole of that document - that is all of the pages in it - that is relevant? I am just trying to perhaps see if there is some way in which we can assist clarification?"

Dr Kingswell went on to say that there were a number of questions for him and then he went on to describe in summary the inconsistencies upon which he was relying, in the following terms:

"Just the issue of Miss Ogawa only being seen by one psychiatrist, Dr Ward. That is clearly untrue."

I then interjected and mentioned Dr De Silva (who had consulted with the accused and had given evidence in this matter on an earlier occasion) and Dr Kingswell continued:

And I then interjected and referred to Dr Hendry (who had also consulted with the accused and had given evidence in this matter on an earlier occasion)..

**[27] Dr Kingswell continued his answer in the following terms:

"That is clearly untrue. I had a number of psychiatrist's opinions to rely on in thinking about revising the diagnosis. The inconsistency that I think Miss Ogawa would like me to find for her is a chapter and verse transcript in this record that refutes the history that she provided to me. Now, I can't find that because everybody makes a history slightly differently and documents it slightly differently. The conclusions of all the doctors is remarkably similar, adjustment disorder with depressed and anxious mood and personality disorder. So that is an absolutely pervasive feature all the way through, across hospitals, across states, across different doctors. The other inconsistencies that I would rely on is the inconsistency between her presentation here today and her presentation in front of yourself for a five day period during October, and the miserable state that she described to me. Those two things don't match up very well ... and the other bit that I don't accept is that people are the helpless victims of mental illness. If people in this country strongly believe they have a mental illness that requires treatment you would expect them to engage in treatment for that disorder, and I think that that was available to Miss Ogawa at a number of points and she has just not been able to make use of that or engage in that." (See T 12.39 L 25 - 12.40 L 35).

This issue was developed in questioning by Miss Ogawa, in the following terms:

"So you think I have adjustment disorder with anxiety and depressed mood? - I think that doctors have made that diagnosis at different points in time over the last couple of years." (T 12.63 LL 25-30).

[28] I accept the evidence of Dr Kingswell about the revision of his diagnosis. I accept the opinion expressed by him about the diagnosis and its consequences so far as are material to the issues in this matter.

[29] Dr Kingswell also addressed a further issue in his second report. This is the critical issue in my view at this stage of the proceedings. It involves the question of the accused's capacity to prepare for trial and to appear self-represented on a trial before judge and jury.

[30] It is perhaps best to start with Dr Kingswell's summary in his first report at p 8 where he said the following:

"At review on 29 October 2008, Miss Ogawa was a woman of normal intellect without cognitive impairment and with extensive legal training. There was no evidence that she was not fit for trial. I have no doubt that Miss Ogawa will be stressed by trial as she has in the past, but there is no reason to believe that, if she were receiving adequate psychiatric care, that there would be any concern of adverse consequences for her mental condition."

[31] Dr Kingswell expressed views about this issue under the heading of "Fitness for Trial" and to that extent he was looking at broader issues. However, he has made some very focussed and unequivocal statements about the issue that was of most importance to the Court when he was asked to prepare a second report: that is, the accused's capacity to prepare for trial and appear self-represented on trial.

At review in the Brisbane Women's Correctional Centre on 29 October 2008, Miss Ogawa presented as an intelligent woman without cognitive impairment and an excellent grasp of English. Miss Ogawa was aware of the charges brought against her in the Federal Court. She denied memory of the behaviour leading to the behaviours. Miss Ogawa could explain the difference between guilty and not guilty. She was readily able to explain the nature and purpose of a trial and was acutely aware of the roles of the participants that make up a Court. Miss Ogawa had the capacity to read the material relating to her offending and instruct sensibly in her own defence. From the history available, particularly that Miss Ogawa was able to represent herself successfully in her dispute with the Melbourne University, there was no reason to doubt her capacity to sensibly represent herself in this matter also. Miss Ogawa is prone to anxiety and depression and her involvement in a trial might produce some temporary worsening of that condition. Serious adverse consequences for her mental condition are unlikely.

Amnesia for offences as a differential diagnosis that includes amongst other things intoxication, cognitive impairment and deceit. Amnesia for offences is a very common self report by accused persons and would usually only prevent someone from properly appraising themselves of the Crown case and instructing sensibly when it occurred in the setting of severe mental illness or cognitive impairment which is not the case here.

Miss Ogawa has a history of successfully representing herself in her dispute with the Melbourne University. There is no evidence of decline in cognitive function or worsening of mental illness to the extent that her capacity in that respect would be diminished. In my view it is for Miss Ogawa a matter of choice as to whether she pursues this matter in a committed way, motivated by a desire to resolve the issue or whether she chooses to frustrate the Court."

[33] This conclusion was expressed in a more focused way in the course of his testimony, in response to questions asked by the accused in examination-in-chief and questions asked by way of refinement of the issues by myself.

"(ACCUSED) ... May I suggest this, from the writings of those two sentences, actually 4, 5, I suspect that you thought that I stand up in Court, run the trial and obtain decision which resolve the matter in favour of me Isn't that your understanding?"

I interpose here that the accused was referring to a line of questioning about her conduct of the litigation involving the University of Melbourne. Dr Kingswell replied in the following terms:

"My understanding isn't really I think material to my thinking on that particular issue. Whether you defended yourself or somebody defended you, makes no difference. You took part in a successful outcome in that matter. There is no reason why you could not do that in this matter. There is no medical or psychiatric illness that would prevent you from doing that in this matter. That is the question in front of me, or I believe to be the question in front of me.

HIS HONOUR: Does that include this, and maybe this is the point that Miss Ogawa wants to get to. I'll cut to the chase. She has said that because of her medical or psychiatric or psychological condition she is unable to prepare or properly be able to represent herself for Court. So prepare the case and then to present her case following the presentation of the prosecution case in a trial situation. That is, I think, the core of what she may be saying to you, which is associated with the question of fitness and the considerations you have to make for that. You see, do you appreciate the distinction, if there is a distinction. In other words, we get to the eve of trial and she may say 'I haven't been well. I haven't been able to prepare. I'm ill. I have a condition. The trial can't go on. It is unfair if it goes on. I can't represent myself. I have no capacity to do that. I don't have the capacity to prepare. I need more time', and this has been going on for a very long time? - In my view that would be simply untrue."

[34] Miss Ogawa then asked a question about the litigation with the University of Melbourne which drew a response from me to this effect:

"Miss Ogawa, you know that if there is a trial in this matter it will be trial before the jury."

The accused asked how she could do the same thing and Dr Kingswell said:

"By properly instructing counsel sensibly in your own defence."

"HIS HONOUR: Assume that she is self-represented ... assume that for the purpose of my question?"

"Well, I still remain of the view that Miss Ogawa has successfully completed a PhD in law. Yes, she has some personality difficulties. Yes, she is prone to anxiety and depression, and at times she is prone to act impulsively in a number of different ways, including with deliberate self-harm, but is she incapable of thinking clearly about the matters in front of the Court? No. If she is, it is not to do with any mental illness that I could elicit ... or cognitive impairment that I could elicit. I can only come to the view that this has some other purpose other than a motivation to resolve this matter" (T 12.47 L 35 - 12.48 L 1).

Miss Ogawa then continued her examination-in-chief as follows:

"DEFENDANT: Now, you refer to the thesis. Because I submitted the thesis, that is one of the ground for your assessment that I should be able to work; is that correct? You referred to the thesis? - Sorry, Miss Ogawa, I know you were asking the questions, but perhaps one of the questions you might put to me is 'what mental illness would impair me from taking part in this process?' because there is none.

Okay. But then why you refer to the thesis submission? That is one of the finding you made, that I can work if I want to. Isn't that the case? If not, then why did you suddenly refer to the thesis submission? - I think if you had any motivation to turn your mind to this matter, you could do so. There is no evidence in front of me that you suffer from a mental illness or cognitive deficit that would prevent you from turning your mind to this case in an efficient and sensible way.

HIS HONOUR: In preparation and appearing? - In preparation and appearing." (T 12.48 LL 5 - 25).

[35] There were further references to this issue:

"HIS HONOUR: Doctor, the reference to treatment and the length of time for treatment is separate from your view expressed about capacity to prepare and represent oneself, isn't it? - Yes, it is." (T 12.62 L 27 - 33).**

"(DEFENDANT) ...in your understanding depression and its criteria is energy, anhedonia, anxious mood and all sorts which affect a person's capacity to work, but somehow it doesn't affect me? - No, no, I haven't made that argument at all. I am happy to accept that you have been prone to recurrent adjustment disorder with depressed and anxious mood, of mild to moderate degree. I am not of the view that - it's absolutely clear - it is absolutely clear in my mind anyway, the description provided to me in the Brisbane Women's Correctional Centre was a description of a fairly severe depressive illness that would significantly impair anybody's ability to work or take part sensibly in a trial. That is not the picture that is painted by all of the other records to hand - your appearance in the District Court over a five day period, or your appearance here today where your concentration and attention to matters has been meticulous. There is no evidence at all in front of me that you have a depressive illness of anywhere near the significance that it would impair your fitness for trial." (T12.63 LL 33-49).

"DEFENDANT: Okay. So in your understanding, because of the past record I had adjustment disorder with anxiety and depressed mood? - And you remain prone to that disorder, yes.

But today I don't have adjustment disorder with anxiety and depressed mood? - No, you may well have. You may well have, but it is not of a degree that impairs your capacity to take part in this matter." (T12.64 LL 5-12).

**[36] I accept Dr Kingswell's evidence of the accused's capacity to prepare for and to appear self-represented on a trial before judge and jury. I accept the opinion expressed by him on this issue. I have no doubt that the accused has the capacity to represent herself in this matter including preparation for any pre-trial hearings, if any, and to prepare for a trial and appear without legal representation.

[37] In his second report Dr Kingswell also referred to the issue of deliberate self-harm. I do not need to deal with that matter in this judgment because I was satisfied that there is no risk of self-harm (T 9.24 LL 31-40).

[38] Dr Kingswell also addressed the issue of the accused's state of mind at the time of the commission of the alleged commission of the offences. In his first report, he had said at page 5, the following:**

"In April 2006 a trial date was set for her to seek damages from the University of Melbourne. As that date approached the Judge of the Federal Court that was to hear the matter was changed. Ms Ogawa thought that the change was detrimental to her and she started to complain to the Federal Court judiciary and the Registrars. My mid April 2006 Ms Ogawa was leaving voice emails and emails that subsequently became the charge of misuse of a communication device. Ms Ogawa said that she was accused of writing threatening emails, particularly threats to kill at random. Ms Ogawa said that it was not true, she did not write such threatening emails that at that time she was so unwell she could not possibly write the long emails that the Commonwealth DPP accused her of sending. Ms Ogawa thought that if she had written the email then perhaps she was suffering "brief reactive psychosis" at the relevant time."

**[39] This reference to her state of mind was one of the issues addressed by Dr Kingswell in his second report, as I have said, after he was provided with further documentation to review, including the email correspondence that is a critical part of the prosecution case. However, I do not need to address that matter in this judgment because it potentially may be a matter that will be the subject of separate argument or, more properly and most likely, if it arises at all, evidence in her case on the trial. There was, as the transcript discloses, an opportunity for Ms Ogawa to have explored this issue with Dr Kingswell in the course of examining him on the content of his report. This was brought to her attention before her examination in chief was stopped. She did not avail herself of that opportunity at any time and ignored the suggestion that it might be helpful to her if she did.

[40] In my view there is no impediment of a medical, psychological or psychiatric nature that would prevent the accused from preparing for pre-trial argument, if any, or for a trial before judge and jury. I therefore make directions as to the further proceedings in this matter, in terms of the following orders:

(1) This matter is adjourned to 10 a.m. on Thursday 29 January 2009 at the District Court, Brisbane for mention appearance required, or for hearing of pre-trial applications, if any.

(2) The bail undertaking of the accused is enlarged on the present conditions, including those relating to medical or psychiatric treatment, to 10 am on Thursday 29 January 2009.

(3) The hearing of further pre-trial applications by the accused, if any, including applications for directions or for the exclusion of evidence to proceed on Thursday 29 January 2009 and (if necessary) Friday 30 January 2009, subject to the following directions:

(a) That any application be in writing and disclose the grounds of the application and be filed in the Registry and served on the Commonwealth Director of Public Prosecutions by 4 p.m. on Monday 19 January 2009;

(b) That a written Outline of Submissions by the accused be filed in the Registry and served on the Commonwealth Director of Public Prosecutions by 4 p.m. on Monday 19 January 2009;

(c) That the Commonwealth Director of Public Prosecutions file a written Outline of Submissions in reply and serve it on the accused, by 4 p.m. on Friday 23 January 2009; and

(d) That any Subpoena to Witness to give evidence and/or produce documents, on any pre-trial application, be filed and served by 4 p.m. on Wednesday 21 January 2009.

(4) The prosecution to make further disclosure, if any, of documents upon which it intends to rely on the trial by 4 p.m. on Monday 19 January 2009.

(5) The trial with Judge and Jury to commence at 10 a.m. on Monday 9 March 2009 at the District Court, Brisbane.

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